Wednesday, July 22, 2009

Networks and Treason

This post is a follow-up to a post I did recently in which I analyzed whether the federal government could nationalize private computer networks if the owners refused to let them be used in defensive (or offensive) cyberwarfare.

This post is about a related issue: if the civilian owners of such networks refused to let them be used to carry offensive or defensive cyberwarfare traffic, would that constitute treason?

To answer that question, we first have to define treason. Article III § 3 clause 1 of the U.S. Constitution defines it as follows: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” (If you’re wondering why the sentence uses “them” and “their” rather than “it” and “its”, the reason is that the drafters of the Constitution saw the United States as a single sovereign entity that was composed of discrete sovereign entities – the states.)

Section 2381 of Title 18 of the U.S. Code implements the constitutional provision by making treason a crime:

Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

To commit treason, therefore, one who is (i) a citizen or otherwise owes allegiance to the United States must (ii) intentionally (iii) levy war against it or give “aid and comfort” to its enemy/enemies. The first two elements are pretty straightforward, the second less so.

“Citizen” includes those born in the U.S. and/or to American citizens, as well as naturalized citizens. U.S. v. Stephan, 50 F. Supp. 445 (U.S. District Court for the Eastern District of Michigan 1943). And it must be your purpose – your intention – to levy war against the United States and/or give aid and comfort to its enemies. Stephan v. U.S., 133 F.2d 87, 94 (U.S. Court of Appeals for the Sixth Circuit 1943).

The first alternative in the third element – levying war against the United States – is unambiguous because it directly refers to “war.” If a U.S. citizen had joined the German Army in World War II and fought against the U.S. that would clearly be treason because he/she would directly be “levying war” against his own country. In re Charge to Grand Jury, 30 F. Cas. 1036 (U.S. Circuit Court for the Southern District of Ohio 1861).

The second alternative is more ambiguous, at least on its face: Giving “aid and comfort” is analogous to aiding and abetting a crime. For example, in Best v. U.S., 184 F.2d 131, 137-138 (U.S. Court of Appeals for the First Circuit 1950), a federal Court of Appeals upheld a U.S. citizen’s conviction for treason. It was based on Robert Best’s serving as a radio commentator for the German Short Wave Station, which operated during the last two years of World War II. As the court noted, his “Best’s Little Lifesaver” broadcasts were beamed at U.S. troops fighting in Europe and were intended to “foster a spirit of defeatism, of hopelessness in the face of vaunted German might”, thereby undermining the effectiveness of U.S. troops and helping Germany win the war. Best v. U.S. supra. The Court of Appeals held that this was enough to constitute treason:

‘When war breaks out, a citizen's obligation of allegiance puts definite limits upon his freedom to act on his private judgment. If he trafficks with enemy agents, knowing them to be such, and being aware of their hostile mission intentionally gives them aid in steps essential to the execution of that mission, he has adhered to the enemies of his country, giving them aid and comfort, within our definition of treason. He is guilty of treason, whatever his motive.’

Best v. U.S. supra (quoting Chandler v. U.S. 171 F.2d 921 (U.S. Court of Appeals for the First Circuit 1948)). The Court of Appeals found that Best’s motive was irrelevant:

Best having knowingly aided agents of the enemy in their efforts to bring about the military defeat of the United States, it is of no consequence that he may have thought it was for the ultimate good of the United States to lose World War II, in order that Hitler might accomplish the destruction of an ally of the United States whom Best regarded as a potential enemy. So far as the legal issues . . . are concerned, it entirely irrelevant to speculate whether the present position . . . of the United States in world affairs are better or worse, as compared with what would probably have been the alternative prospect of facing the final life-and-death struggle with a triumphant Hitler, master of most of the world outside the Americas.

Best v. U.S. supra.

That brings us to the final requirement for treason under the second alternative set out in § 2381: The person must have given aid and comfort to an “enemy” or “enemies” of the United States. Courts have held that the term “enemies” means “a foreign power in a state of open hostility with” the United States. Stephan v. U.S., supra. This is why Julius and Ethel Rosenberg, who were accused of giving the Soviet Union information about the U.S. atomic bomb program, were prosecuted for espionage, instead of treason. Since a state of open hostility did not exist between the U.S. and the Soviet Union at the time, what they did couldn’t be treason. U.S. v. Rosenberg, 195 F.2d 583 (U.S. Court of Appeals for the Second Circuit 1952).

And that brings us back to networks and cyberwarfare: If the civilian owner of a network refuses to let the U.S. military use the network to transmit signals as part of a cyberwar attack, is that treason? In answering that question, I’m going to assume the network owner qualifies as a citizen or someone who otherwise owes allegiance to the U.S.

Under the first alternative in § 2381, the answer depends in part on whether the network owner is directly or indirectly aiding military forces engaged in war with the U.S.. If the owner is refusing to let the network be used to respond to a cyberattack that has been already been launched against the U.S., that might qualify as aiding the attacking forces . . . as long as the owner is refusing for the purpose either of levying war against the U.S. or giving aid and comfort to the country that is attacking the U.S.

If the owner is refusing for other reasons – to keep the network from becoming the target of attacking forces or to stay neutral in a conflict conducted in cyberspace – would that negate any inference of an intent to aid the attackers? I think it would, because I think I can distinguish that scenario from the scenario in the Best case. The Best court said it didn’t matter – insofar as Best’s liability for treason was concerned – whether he aided the enemy because he thought the U.S. would benefit more from being defeated by Germany than by defeating Germany. All that mattered was that when he made the broadcasts he acted with the purpose of giving aid and comfort to the German forces in their battle against Allied forces.

If the network owner is refusing to let the network be used because of concerns that aren’t related to the conduct of cyber-hostilities between the U.S. and the country attacking the U.S., then I’d argue the owner can’t be convicted of treason. Since the owner isn’t a member of the armed forces and, we’re assuming, the government hasn’t nationalized computer networks in the U.S., it seems to me the owner can refuse to let the network be used to launch a defensive attack without incurring liability for treason.

What if the owner is refusing to let the network be used to launch an offensive attack? Does that alter the analysis? I think it does. I don’t see how the network owner could be convicted of treason here for several reasons: One is that since no state of war exists between the countries at least until the attack is launched, and maybe until it hits its target(s), I don’t see how the network owner could be levying war against anyone. (I’m assuming, throughout this analysis, that cybertattacks constitute acts of war.)

Another, related reason is that if the countries aren’t already in a state of open hostility, the owner can’t be giving aid and comfort to an “enemy” of the U.S. Given all that, I think it would be very difficult – even impossible – to prove that the network owner refused to let the network be used to launch the offensive cyberattack for the purpose of either levying war against the U.S. or giving aid and comfort to its “enemy.” The country against which the attack is/will be/would be launched isn’t an enemy, as I understand, until the attack has arrived, and maybe until the attacked state responds in kind.

Would it matter if, as I hypothesized in my earlier post, the federal government had earlier nationalized the computer networks controlled by U.S. citizens? I don’t know. I don’t know (so far) what, if any, effect nationalization has on the treason analysis. It seems all nationalization would do is to put the network owner in a position in which he/she/it is now obligated to follow orders from designated federal officials. If that’s true, then refusing to obey such an order would presumably be punished as precisely that, i.e., as the intentional refusal to follow an order issued under the authority of the statute authorizing nationalization of the networks. In other words, it seems that a refusal after nationalization should constitute the crime, if any, the nationalization statute created to sanction those who do not follow orders from an authorized source. I’ll have to look into that a little more, and see if nationalization would impact on the treason analysis.